Settlement Conferences in Criminal Court - Lawyers

It is no exaggeration to say thatthe Maricopa County Superior Courtis both a large court, and a well-regardedone. It serves a growing and diversepopulation, and it often is at the forefrontof court and jury administration.One of those groundbreakingprograms was the institution of criminalsettlement conferences.Settlement Conferencesin Criminal CourtBY HON. ROBERT L. GOTTSFIELD AND MITCH MICHKOWSKI, Ph.D.Hon. Robert L. Gottsfield is a retired but called-backfull-time judge of the Superior Court, Maricopa County, whocurrently conducts 40 to 60 settlement conferences a month.Mitch Michkowski is the court’s Civil CourtAdministrator and Senior Researcher.8 ARIZONA ATTORNEY APRIL 2007

A Busy CourtThe Superior Court of Arizona in MaricopaCounty is the fifth-largest trial court in the UnitedStates, consisting of 94 judges and 52 commissioners,of which 28 judges and 29 commissioners are assigned acriminal calendar. In fiscal year 2006, ending June 30, therewere 40,928 criminal cases filed, in addition to 36,691 civil casesand 50,878 family court cases. This added up to a docket of 157,956total case filings. With respect to criminal cases, the court typically disposesof almost 92 percent of such cases over a 12-month period.The court has a nationwide reputation as an innovative court. 1 Many of the juryreforms of the last 10 years were instituted here, including jurors asking questions ofwitnesses in both civil and criminal trials, and letting civil jurors (but not criminal jurors)discuss a case before final deliberations as long as all jurors are present in the jury room. 2Although this court is not the first to conduct criminal settlement conferences, it is certainlyamong the very first courts to do so on a large scale. 3As in most jurisdictions, criminal cases take precedence for trial purposes over civilcases, and at times criminal cases are ready for trial without a sufficient number of criminaljudges to handle them. When that occurs, civil judges are assigned criminal trials.History and Present ProcedureIn 1996, certain judges 4 on the criminal bench began to do settlement conferencesin criminal cases with the consent of both parties; those judges includedthe then presiding and associate presiding judges, They took thisdramatic step after noting that many criminal cases thatshould have resulted in pleas were instead goingto trial. In addition, there was a backlog ofcriminal cases waiting for trial that had to beassigned to civil judges.— continued on p. 10Published with the permission ofJUDICATURE, the journal of theAmerican Judicature Society,which features this article in itsMarch/April 2007 edition.APRIL 2007 ARIZONA ATTORNEY9

Settlement Conferences in Criminal CourtOn the civil side in Maricopa CountySuperior Court, most cases are assignedto volunteer civil attorneys on a countywidebasis to conduct a settlementconference before a case may proceedto trial. The assigned attorneyreports back to the judge whether the caseresulted in a settlement and whether the parties negotiated ingood faith. More settlements have been concluded in civil casesthan would have been the case without such conferences.With the history of civil settlement conferences in mind andrealizing that only judges should be doing such conferences incriminal cases, these pioneering criminal judges petitioned 5 theArizona Supreme Court for a rule formally authorizing such conferences.In 1997, the Arizona Supreme Court responded favorably,adopting Rule 17.4 (a), for a two–year experimental period. TheCourt Comment stated, “In adopting a statewide experimentalamendment permitting judges to participate in plea negotiations,the court expects that all lawyers—prosecutors and defense counselalike—will cooperate in the experimental use of this rule, andthat judges will avoid coercive behavior of any kind.” In 1999,using similar language in its Comment, the court adopted Rule17.4 (a) as a permanent program and procedure, which providesas follows:Plea Negotiations. The parties may negotiate concerning, andreach an agreement on, any aspect of the case. At the requestof either party, or sua sponte, the court may, in its sole discretion,participate in settlement discussions by directing counselhaving the authority to settle to participate in a good faith discussionwith the court regarding a non-trial or non-jury trialresolution which conforms to the interests of justice. Beforesuch discussions take place, the prosecutor shall afford the victiman opportunity to confer with the prosecutor concerninga non-trial or non-jury trial resolution, if they have not alreadyconferred, and shall inform the court and counsel of any statementof position by the victim. If the defendant is to be presentat any such settlement discussions, the victim shall also beafforded the opportunity to be present and to state his or herposition with respect to a non-trial or non-jury trial settlement.The trial judge shall only participate in settlement discussionswith the consent of the parties. In all other cases, thediscussions shall be before another judge or a settlement division.If settlement discussions do not result in an agreement,the case shall be returned to the trial judge.Alleged victims, pursuant to the Rule, are advised by the prosecutorof any plea the state intends to offer, and their advice issolicited. If the victims have a contrary position, the court anddefense counsel are to be advised at the time of the conference,and the victims may be present for the settlement conference. Inpractice, it is rare for a prosecutor to advise that alleged victimsdisagree with the state’s offer, and they are not usually present atthe conference. As noted, trial judges do not conduct settlementconferences in their own cases unless the parties consent to it.Usually, judges not assigned to a case handle such conferences.Under the Rule, either party can request the conference, or ajudge can set it on her own.Judges soon realized that the number of requests for settlementconferences were more than could be handled by regularlyassigned judges with typical criminal calendars. Four mornings aweek, from 8:00 a.m. until 10:30 a.m., such judges hear statusand trial management conferences, requests for mental evaluations,motions that can be done expeditiously, pleas, sentencingsand probation violation dispositions. Jury trials begin after thesehearings. One day a week, most often on a Friday, there is usuallyno trial, and criminal judges hear motions requiring longerperiods for argument, and conduct evidentiary hearings. The typicalcriminal department judge with a full criminal caseload cantypically do only two or three settlement conferences a week, ifany at all.To meet the need for more judges to do settlement conferences,there are five criminal judges designated special assignmentjudges, including the presiding and associate presiding criminaljudges. On Monday through Thursday, they handle trials thatregularly assigned divisions cannot do. Most important, becausethey do not have a regularly assigned caseload, they do settlementconferences five days a week, usually from 8:00 a.m. until 10:30a.m. before jury trials commence, as well as all day Friday. Thesefive judges each typically handle 30 to 70 conferences a month,or about one-third of the 610 average monthly conference volume.This demonstrates that many judges are conducting criminalsettlement conferences, including some judges on civil assignment.This enables all judges to develop an expertise in this area.How Conferences OperateTo be sure, not all judges are comfortable conducting criminalsettlement conferences, and they are not asked to do them. Themajority of criminal judges do participate in them when they havethe time. Although the personality of the individual judge willaffect how such conferences are conducted, there are commonelements that judges use.Personal Greeting/Informal AtmosphereFirst and foremost is the informal setting.There is always a personal greeting given to the defendant,who is called by his or her surname, and some judges shake handswith the defendant. Though judges are most often robed and a10 ARIZONA ATTORNEY APRIL 2007www.myazbar.org

Settlement Conferences in Criminal Courtcourt reporter is present for all discussions,judges are not usually on thebench. Rather, they sit at a tablewith the defendant, his or her counsel,and the prosecutor or stand infront of the table using a flip chart. Somejudges prefer to meet with both counsel first in chambers toestablish ground rules and to get a better grasp of the case. Somewould rather hold the settlement conference itself in chambers orthe jury room rather than the courtroom.Those judges who use a chart have written on it in advance ofthe conference the charges, the sentencing ranges if convicted,prior convictions and any plea offer (if known prior to the conference).In that regard, some judges require one or both attorneysto file a settlement memorandum prior to the conference,whereas others do not. The plea offer will be written on the chartand reviewed with the defendant during the conference, whichusually last 30 to 45 minutes.Imparting Information/State’s Evidence/State’s OfferThe judge explains that the purpose of a settlement conference isthreefold:1. to give information to the defendant about what he or she ischarged with and the sentencing range of each charge,should the jury determine the defendant is guilty beyond areasonable doubt of any charge;2. to advise defendant of the evidence the state will introduceat the trial. Typically, the judge asks the prosecutor to dothis, as the judge is usually not that familiar with the case;and3. to examine the plea offered by the state, its pros and consand ramifications to the defendant, contrasting it to the sentencingrange of the charge if there is no plea and he isfound guilty by a jury.Absence of Coercion/Jury Role/StatisticsSettlement judges stress to the defendant that the purpose of aconference is not to force the defendant to enter into a plea,which would be highly improper. Instead, the purpose is to givethe defendant information. Given that fact, he or she will not betold anything different than what their counsel has undoubtedlytold them. The judge also indicates to the defendant that:• Defendant has an absolute right to a trial, but that this is achance to talk to a judge who has no stake in their case.• Defendant is free to ask any questions he or she wants.• Both the prosecutor and defense counsel are experienced inthese types of trials (assuming this is true).• Defendant’s counsel will do all that is required to properlyprotect the rights of the client.• Jurors are highly sophisticated, usually very fair and reasonable.• A jury is instructed that if it is “firmly convinced” 6 that adefendant is guilty of a particular charge beyond a reasonabledoubt, it has a duty to convict. If not, the jury has aduty to acquit (some judges will discuss what happens at thetrial and trial procedure).• Of 10 individuals who appear before asettlement judge, one to four will enterinto pleas that day or set a date beforethe settlement judge or the trial judge totake the plea.• An additional one to four will enter intopleas later in the process, often as a resultof the settlement conference.• One to two proceed to trial. 7Judges advise the defendant that they arethere to answer any questions that the defendantmay have. Some judges will, if asked,give their opinion whether it is a tough case todefend.A judge’s typical statement is that thoughdefense counsel are committed to protectingdefendant’s rights, they are not magicians andmay not get the result the defendant wouldlike, if in a given case the evidence is overwhelming.Usually, judges will discuss withdefendants who have priors whether theircredibility can be impeached if they take thestand.Why Do SettlementConferencesThe use of settlement conferences has grownover the years.In 1999 when the Supreme Court adopteda permanent procedure governing theiruse, the Maricopa County Superior Court wasaveraging 165 conferences a month, 8 whereasthe criminal division averaged 610 monthlysettlement conferences in the first ninemonths of 2006. Settlement rates during1997–1999 were between 64 percent and 78percent. 9 Those involved in the process—defense lawyers, prosecutors and judges—believe the settlement rates are within that range today, notwithstandingthe increased volume of cases using the settlementprocess. 10In 2006, the Maricopa County Attorney’s Office instituted apolicy that no further pleas will be offered after 30 days from the12 ARIZONA ATTORNEY APRIL 2007www.myazbar.org

trial date. The effect of this policy puts pressure on the parties toget something done. Moreover, it is often the case that the statewill advise at the settlement conference that it is the last day thestate will offer a particular plea. Defense counsel and their clientsrealize that if a plea is offered in the future, after the 30-day cutoff,it is likely to be more harsh. This provides an incentive toThe purpose ofa conference isnot to forcethe defendantto enter intoa plea, which wouldbe highly improper.Instead, thepurpose is to givethe defendantinformation.examine a plea offer realistically.The Maricopa County Attorney also retains a policy wherebyif defense counsel or a settlement judge believe a plea is too harshgiven the circumstances, a request (usually asked to be put inwriting) for a deviation from policy can be sent to the prosecutor.In that case, the plea will be restaffed and reconsidered. Fromjudges’ experience with this process, it can be stated that thisrestaffing is usually done in good faith, and deviations are grantedby the County Attorney in appropriate cases.This latter assumption, in some respects, may not reflect theexperience of the defense bar. James J. Haas, Maricopa CountyPublic Defender, has this to say with respect to the efficacy of settlementconferences:Settlement conferences under Arizona’s Rule 17.4 haveproven useful in two situations.The first is where the defendant, for whatever reason, doesnot trust the advice of his attorney when the attorney recommendsacceptance of a plea agreement. In that instance, it canbe very helpful to have a judge advise the defendant of theconsequences of going to trial or taking the plea, essentiallyechoing the advisement given the client by his attorney.The second situation is where the plea offer is disproportionatelyharsh, and the settlement conference judge can exertsome influence on the offer by contacting the higher levels ofmanagement in the prosecutor’s office.Unfortunately, in Maricopa County, the second of thesesituations is becoming more and more rare because of theunwillingness of the prosecution to consider alternatives to itsplea offers. Settlement conferences are a waste of time andshould be abandoned if only one side is willing to make goodfaith attempts to resolve cases.On the other hand, Andrew P. Thomas, Maricopa CountyAttorney, comments:Settlement conferences can be useful tools in appropriate circumstances.They are useful in bringing the parties togetherearly in the proceedings so that they can gauge which cases arelikely to go to trial or be resolved by plea agreement. They canalso be used to resolve cases with a “difficult defendant.” Anycases resolved at settlement conferences that are set early in theprocess and within the plea cutoff dates required by theMaricopa County Attorney’s Office (MCAO) save resourcesfor MCAO, the courts and the defense.Settlement conferences are significantly less useful whenthey are set late in the proceedings, such as on the eve of trial.At this point MCAO has invested significant resources inpreparation for trial. Therefore, the benefits to the State inattending a settlement conference are greatly diminished. Infact, at many of these settlement conferences judges attemptto pressure young prosecutors into re-extending offers in violationof MCAO’S plea cutoff policy.Another downside to settlement conferences occurs whentoo many conferences are set on a court calendar. In theseinstances, prosecutors and defense attorneys waste significantwww.myazbar.orgAPRIL 2007 ARIZONA ATTORNEY13

Settlement Conferences in Criminal Courtblocks of time waiting for their casesto be called.Finally, the advent of settlementconferences in criminal caseshas had another negative impact.Because settlement conferences are so readilyavailable, some attorneys within the defense communityrely unduly on the courts to do their job for them. In someinstances, defense attorneys request settlement conferencesmerely to meet with their in-custody clients. At some of theseconferences defense attorneys convey plea offers to defendantsfor the first time. The pleas are either entered without a settlementconference being held or the conferences are continuedso that defendants can consider plea offers. Yet court timewas set aside for these “settlement conferences,” and prosecutorswere required to be present.Larry A. Hammond, a private defense counsel in Phoenix andPresident of the American Judicature Society during 2003–2005,offered the following observation:Have settlement conferences proven to be valuable?Absolutely. Every criminal defense lawyer and, I would suppose,every good prosecutor can cite the cases in which theconstructive intervention of a judge has helped to achieve aresult fair to all sides. There is reason to question, however,whether one can expect settlement conferences to continue tobe useful in the future, at least in this county.Obviously, the settlement of any case—whether civil orcriminal—requires good faith cooperation and open-mindednesson both sides. One important element must be a respectfor, and willingness to listen to, what the settlement judge mayhave to say. If the defendant is unwilling to listen, the timemay well have been wasted. Likewise, when the prosecutor,relying on an inflexible plea policy, refuses to consider thecourt’s views, the process becomes equally frustrating. Theprocess does not work well when those who supervise theprosecutor’s office assume that the settlement judge’s motiveis to “pressure young prosecutors,” or when the prosecutionbelieves that defense counsel has some motive other thanattempting appropriately to resolve the case.It remains to be seen whether this very good innovationwill continue to enjoy vitality. I certainly cannot speak for allcriminal defense lawyers, but I believe that most hope thatjudges do continue to make themselves available to assist inthe settlement process and that the line prosecutors assignedto these cases are allowed by their supervisors to exercise thelevel of judgment necessary for these conversations to proveuseful.Although not all lawyers and judges participating in settlementconferences will agree with the foregoing criticisms, anyjurisdiction contemplating use of the settlement conferenceshould know the perceived downside. However, the authors feelthat such criticisms do not detract from the benefits obtained inmost cases by conducting such conferences.ConclusionThere is no rule in Arizona requiring all criminal cases to havea settlement conference before they can go to trial. Still, as itnow stands, approximately 65 percent of criminal cases go tosuch conferences. The other 35 percent represent those cases:• disposed of by plea, diversion or dismissed very early in theprocess before a case is officially assigned to a criminal trialdivision;• the defendant has been advised of a plea offer and does notwant a settlement conference;• both sides agree a settlement conference would be unproductive;or• no plea offer will be made.Settlement rates of those holding conferences continue toaverage 64 percent to 78 percent, with most participants estimatingit is on the higher side of this range. Implementation ofsuch a procedure was enhanced because the judiciary took thelead and lawyers, including those dissenting, 11 had a voice in theplanning process. Moreover, the Arizona Supreme Court has “along and successful history of innovation in general and of rulemaking in particular.” 12The reasons given in 1997 to the Arizona Supreme Court inthe Petition of then-Presiding Criminal Judge Ronald S.Reinstein, urging the court to adopt a criminal settlement conferenceprocedure, sums up why we do them and, because nothinghas really changed, why we continue to do so:Criminal caseloads in all courts of the state have reachedrecord numbers. Because of inadequate resources in ourcourts, prosecution agencies, indigent defense agencies, andcourt appointment counsel budgets, we are being asked todo more with less. Court time and attorney time should betreated as scarce resources. Many of the attorneys prosecutingand defending criminal cases have limited experience.When the issue of mandatory sentencing is added to thismixture, what we often see are cases that are tried to a jurythat could have been settled with the assistance of the court.14 ARIZONA ATTORNEY APRIL 2007Most participants agree that the criminal settlement conferenceis one of the most useful interventions proposed andadopted by a court. The benefits include reducing the timeneeded to resolve cases, especially the delays occasioned bygoing to trial. Judges are available on short notice to do conwww.myazbar.org

Settlement Conferences in Criminal Courtferences, as they can often be set withinfive days of a request in a specialassignment or settlement division.The conference, a plea and even asentencing can be done on thesame day in a proper case where apresentence report is not needed.By judges often pointing out weaknesses and strengths ofcases, a balanced outcome hopefully can be achieved. Such con-ferences avoid a future evidentiary hearing in which a convicteddefendant claims inadequate representation because counsel didnot advise him or her of terms of an offer from the state.Most important, even if the conference does not end in aplea then or later, cases are processed on a professional, cooperativeand respectful basis, causing the parties to work togetherfor a period of time instead of doing battle in court. 13 This lastbenefit alone would appear to make the process worthwhile foradoption by a court in any jurisdiction. AZATendnotes1. E.g., 2003 The Center for DigitalGovernment’s “Best of Breed” award for thecourt’s online jury system; 2002 and 1998Computerworld’s Honors Program andSmithsonian Awards for visionary use ofinformation technology; 1997 Howell HeflinAward (State Justice Institute) for the court’sSelf-Service Center for pro se litigants (similarawards from American Bar Associationand National Association for CourtManagement); 1997 American JudicatureSociety Justice Award for innovations in publicservice, a nationwide court education center,reforms in civil justice procedures and thejury system (first time in 22-year history ofthe award that it was presented to a court);WILLIAM E. HEWITT, GEOFF GALLAS, &BARRY MAHONEY, SIX PROFILES OFSUCCESSFUL COURTS 87-102 (NationalCenter for State Courts, Williamsburg, Va.,1990) (highlighting the Phoenix programknown as fast-track as a delay prevention tooland an example of excellence in civil casemanagement). See also, B. Michael Dann &George Logan III, Jury Reform: The ArizonaExperience, 79 JUDICATURE 280 (1996); B.Michael Dann, “Learning Lessons” and“Speaking Rights”: Creating Educated andDemocratic Juries, 68 IND. L.J. 1229 (1993).Judge Dann, a Superior Court, MaricopaCounty, trial judge for 20 years, wasPresiding Judge of the Court during1985–1990. He and his committee wereresponsible for implementing with theArizona Supreme Court approval of many ofthe jury reforms for which this Court andArizona are noted. See also B. Michael Dann& Valerie Hans, Recent Evaluative Researchon Jury Trial Innovations, 41COURT REV. 12(2004); Tim Eigo, O Pioneer: Michael DannShapes Jury Reform for a New Century, ARIZ.ATT’Y, Feb. 2001, at 18.2. The Dann articles, supra note 1.3. Exhaustive research on the issue was not conducted,but Dade County (Miami) must beone of the earliest. Anne M. Heinz & WayneA. Kerstetler, Pretrial Settlement Conference:Evaluation of a Reform in Plea Bargaining,13 LAW & SOC’Y REV’W 349 (1979) (discussinga yearlong test of settlement conferencesin criminal cases in Dade County; allnegotiations took place before a judge, victimand defendant and usually resulted in at leastan outline of a settlement). See also JeniaIontcheva Turner, Judicial Participation inPlea Negotiations: A Comparative View, 54AM. J. COMP. L. 199 (2006) (analyzingGermany, Florida and Connecticut systems);Hon. J. Richardson Johnson, ImplementingA Circuit Court Trial Division, 78 MICH.B.J. 688 (1999) (discussing settlement conferencesin the criminal trial division); CourtAuthorizes Settlement Conferences inCriminal Cases, MONT. L. 16 (Mar. 19,1994) (conducting settlement conferences incomplex criminal cases (more than 16 days)in U.S. District Court for the District ofMontana); Kings County (Hansford-LocalRule 522); INYO County (Independence-Local Rule 10.1) and Imperial County (ElCentro-Local Rule 12.05) have Local Rulesproviding for settlement conferences in criminalcases which appear to be mandatory;Marureen E. Laflin, Remarks On Case-Management Criminal Mediation, 40 IDAHOL. REV. 571 (2004) (judges using mediationskills to conduct mediation of criminal casesin Idaho). It has been confirmed that at thistime the National Center for State Courtsdoes not statistically track criminal (or civil)settlement conference statistics on thenation’s state and local courts.4. Then-Presiding Criminal Department JudgeRonald S. Reinstein was instrumental inadvocating to the Arizona Supreme Courtthe adoption of Rule 17.4 (a) providing forsettlement conferences in criminal cases. Hewas joined in doing such conferences byAssociate Presiding Criminal DepartmentJudge Greg Martin and Judges MichaelWilkinson and Thomas O’Toole.5. Superior Court, Maricopa County, Petitionto Amend Rule 17.4 (a), Arizona Rules ofCriminal Procedure, prepared by JudgeReinstein, filed Sept. 6, 1996, at 2.Interestingly, prosecutors, citing, inter alia,separation of powers concerns, were unanimouslyagainst the proposal. See Comment ofRichard M. Romley, then-Maricopa CountyAttorney, filed Nov. 8, 1996; Comment ofKerry G. Wangberg, City of PhoenixProsecutor, filed Nov. 6, 1996.6. Arizona defines “beyond a reasonable doubt”to jurors as “proof that leaves you firmly convincedof the defendant’s guilt.” State v.Portillo, 898 P.2d 970, 974 (Ariz. 1995).7. Court statistics show the initial 40 percentsettlement rate within three days of a settlementconference. The court does not keeprecords of settlements occurring after threedays. The other figures represent a fairly wellfoundededucated guess by attorneys andjudges who participate in such conferencesand court administrators who track cases. Forother statistics cited in the article, seewww.superiorcourt.maricopa.gov by referencingthe public information site.8. Comment of Judge Reinstein filed with theArizona Supreme Court April 2, 1999, at1–2, setting forth the settlement statistics asof that date.9. Id.10. In Superior Court, Maricopa County, onlytwo percent of all filed criminal cases go totrial. Timelines for trying criminal in-custodycases must be resolved within 150 days ofarraignment, out-of-custody cases have a180-day period, capital cases (which are notcomplex) may extend to 18 months, andcomplex criminal cases must be resolvedwithin 260 days of arraignment. 16A A.R.S.Rules of Crim. Proc. Rule 8.11. Supra note 5.12. Dann & Logan, supra note 1, at 286.13. Similar benefits were described by thenlongtermMaricopa County Deputy PublicDefender Donna Lee Elm in a Commentfiled April 2, 1999, with the Supreme Courtpraising the two-year experiment under Rule17.4(a) and urging its permanent adoption.At that time, she supervised one-quarter ofthe office’s criminal defense practitioners.16 ARIZONA ATTORNEY APRIL 2007www.myazbar.org